United States District Court, S.D. Florida
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Plaintiff's Motion for
Summary Judgment (DE# 17, 02/05/17) and the Defendant's
Motion for Summary Judgment (DE# 21, 04/17/17). The plaintiff
seeks reversal of Commissioner's decision to deny the
plaintiff's eligibility for Social Security Disability
Income Benefits under the provisions of the Social Security
Act, Sections 216 (I) and 233 of Title II. In the
alternative, the plaintiff asks for a remand for further
administrative proceedings. The Complaint was filed pursuant
to the Social Security Act, 42 U.S.C. §405(g)
(hereinafter “Act”), and is properly before the
Court for judicial review of a final decision of the Social
Security Administration (hereinafter “SSA”). The
parties consented to Magistrate Judge jurisdiction, (DE# 13,
12/21/16), and this matter was referred to the undersigned
for final disposition pursuant to an Order by Judge Moreno.
(DE# 16, 12/29/2016). Having carefully considered the
fillings and applicable law, the undersigned enters the
April 7, 2015, William Christian Kunce (hereinafter
“the plaintiff”) protectively filed a Title II
application for a period of disability and disability
insurance benefits, alleging he became disabled on November
6, 2012. (Tr. 23, 164, 171-78). The application was denied
initially and upon reconsideration. (Tr.
23). At the administrative hearing on January 26,
2016, the plaintiff appeared, testified and was represented
by counsel. (Tr. 43-75). A vocational expert (hereinafter
“VE”), also appeared and testified at the
hearing. (Id.). On February 16, 2016, the
Administrative Law Judge (hereinafter “ALJ”)
found that the plaintiff was not disabled within the meaning
of the Social Security Act. The ALJ's decision became
final when the Appeals Council denied the plaintiff's
request for review on May 10, 2016. (Tr. 5-11).
The Plaintiff's Background
plaintiff was born on November 8, 1983, and is thirty-three
years old. (Tr. 34). The plaintiff completed one year of
college education and does not have any vocational or
technical training. (Tr. 47). The plaintiff alleges his
disability began on November 6, 2012. (Tr. 44). The plaintiff
served in the Marine Corps from July 23, 2002, to February
14, 2003, and from January 5, 2004, to March 10, 2006. (Tr.
33). The plaintiff alleges disability due to a combination of
mental health impairments, including, bipolar disorder,
post-traumatic stress disorder (PTSD), depression, and
anxiety. (Tr. 44-5; DE# 21, 04/17/2017). The plaintiff also
alleges he is disabled due to lower back pain and a right
shoulder impairment. (DE# 21, 04/17/2017).
plaintiff's Work History and Disability Reports include
prior employment as a flight technician, a roofer helper, and
a retail assistant manager. (Tr. 49, 50). The plaintiff
worked for three different retail outlets and each position
did not last longer than one month. (Tr. 48). The plaintiff
also worked as a roofer helper for “[one] month or
so” and alleges he stopped working as a roofer helper
because he could not “physically keep up.” (Tr.
50). Specifically, the plaintiff alleges his shoulder
subluxation prevented him from keeping up with the physical
aspects of the job. (Tr. 50-51).
plaintiff testified to having anger outbursts with his
children and that he did not think he could control his
anger. (Tr. 52-53, 56). The plaintiff also testified that he
helps home school his seven-year-old son for half an hour to
one hour at a time. (Tr. 52-53). With respect to going
outside the home, the plaintiff testified that he is prone to
have “more panic attacks when [he's] outside of the
house.” (Tr. 56-57). The plaintiff further testified
that when he does go outside of the home, it is only with his
wife and only to the store. (Tr. 56). The plaintiff testified
that he frequently traveled from Miami, Florida to Augusta,
Georgia due to continuing problems with his living situation.
(Tr. 254). The plaintiff testified that he smokes marijuana
at least two times per month, that his wife, who is his care
giver, buys the marijuana with the care giver salary she
receives from the Department of Veterans Affairs (hereinafter
“VA”). (Tr. 67).
plaintiff did not engage in substantial gainful activity
(hereinafter “SGA”) during the period from his
alleged onset date of November 6, 2012, through his date last
insured of December 31, 2013. (Tr. 47). The plaintiff last
met the insured status requirements of the Social Security
Act on December 31, 2013. (DE # 21, 04/17/2017 at 2).
The Plaintiff's Treating Physicians and Relevant
plaintiff was examined by several doctors during and after
the alleged onset date of disability, including: Dr. Lovorka
P. Stojanov, M.D., an internist at the Charlie Norwood VA
Medical Center in Augusta Georgia (hereinafter “Augusta
VAMC”) (Tr. 253-65); Dr. Danielle Suykerbuyk, D.O., a
psychiatrist at the Augusta VAMC (Tr. 530); Dr. Maria P.
Campos, M.D., an internist at the Miami VA Medical Center
(hereinafter “Miami VAMC”) (Tr. 464); Dr. Javier
I. Cartaya, M.D., a psychiatrist at the Homestead, Florida VA
Medical Center (hereinafter “Homestead VAMC”)
(Tr. 314-21); Dr. Ernesto M. Grenier, M.D., a psychiatrist at
the Miami VAMC (Tr. 366); Dr. Zhihong Guo, M.D., a
psychiatrist at the Miami VAMC (Tr. 298-9, 347); Dr.
Stephanie Friedman, M.D., a psychiatrist at the Miami VAMC
(Tr. 913-26); and Dr. Earl Taitt, M.D., an examining
psychiatrist at Valencia Psychiatry in Orlando, Florida. (Tr.
Dr. Lovorka P. Stojanov, M.D.
on November 16, 2012, the plaintiff received treatment from
Dr. Lovorka P. Stojanov M.D. at the Augusta VAMC. (Tr. 261).
In Dr. Stojanov's progress note dated November 16, 2012,
the plaintiff reported headaches while taking
Mobic and requested a change in medication.
(Id.). In addition, the plaintiff reported issues
with irritability and insomnia. (Id.). During the
November 16, 2012, visit, Dr. Stojanov performed a PHQ-9
Depression Screen on the plaintiff. (Tr. 263). The plaintiff
scored a sixteen on the PHQ-9 screening, which, according to
Dr. Stojanov, is “suggestive of moderately severe
depression.” (Id.). Dr. Stojanov prescribed
the plaintiff Indocin for his lower back pain and ordered a
mental health evaluation. (Tr. 262).
Dr. Danielle Suykerbuyk, D.O.
January 9, 2013, the plaintiff was evaluated by Dr. Danielle
Suykerbuyk, D.O., for management of his PTSD at the Augusta
VAMC. (Tr. 530-32). In Dr. Suykerbuyk's progress note
dated January 9, 2013, the plaintiff reported insomnia,
nightmares, intrusive thoughts, extreme emotional numbing,
impaired concentration, low energy, and alternating
psychomotor agitation and retardation. (Id.). The
plaintiff described episodes of no sleep, increased energy,
racing thoughts, pressured speech, euphoric mood, and
increased libido. (Id.). Dr. Suykerbuyk diagnosed
the plaintiff with Bipolar I disorder most recent episode
manic without psychotic features, PTSD, cannabis abuse in
full sustained remission, nicotine dependence, and a Global
Assessment of Functioning (GAF) of 50. (Tr. 532). Dr. Suykerbuyk
prescribed the plaintiff Lithium. (Tr. 533). Dr. Suykerbuyk
also reported that the plaintiff was alert and oriented, had
good eye contact and grooming, had fair judgment, and that
his memory was intact. (Tr. 532).
January 16, 2013, Dr. Suykerbuyk spoke to the plaintiff via
telephone. (Tr. 528). The plaintiff reported that since he
started taking lithium, he had a metallic taste in his mouth
and some headaches. (Id.). Despite these side
effects, the plaintiff elected to continue taking Lithium and
agreed to have his blood level tested on January 23, 2013.
(Id.). Dr. Suykerbuyk prescribed the plaintiff
Tylenol for his headaches. (Id.).The plaintiff
called Dr. Suykerbuyk the following day, on January 17, 2013,
and stated he had taken Tylenol several times for the
headaches and that it was not helping. (Id.). The
plaintiff also stated he would like to switch to another
medication. (Id.). Dr. Suykerbuyk prescribed the
plaintiff Depakote ER. (Id.).
April 26, 2013, Dr. Suykerbuyk spoke to the plaintiff via
telephone. (Tr. 520). According to Dr. Suykerbuyk's
notes, the plaintiff was very upset about “everyone
dying”. (Id.). The plaintiff conceded to
having trouble remembering to take his medications.
(Id.). Dr. Suykerbuyk discussed with the plaintiff
the importance of medication compliance for his emotional
stability and encouraged him to take responsibility for his
medication rather than relying on his wife. (Id.).
Dr. Suykerbuyk noted the plaintiff had a GAF score of 45 and
increased his dosage of Depakote. (Tr. 520-21).
Dr. Maria P. Campos, M.D.
August 25, 2014, the plaintiff had his initial visit at the
Miami VAMC with Maria P. Campos, M.D. (Tr. 464). The
plaintiff reported attempting suicide multiple times in the
past, but did not presently have any suicidal intent.
(Id.). Notwithstanding this contention, the
plaintiff reported he felt his condition had worsened.
(Id.). The plaintiff also reported a previous right
shoulder surgery and constant chronic pain. (Id.).
The plaintiff further reported having difficulty sleeping and
severe epigastric pain after each meal. (Tr. 467).
Campos placed a Patient Record Flag, Category I on the
plaintiff's chart, despite the plaintiff's reported
lack of suicidal intent. (Tr. 462). The plaintiff was placed
on the facility's High Risk for Suicide list the
following day on August 26, 2014. (Tr. 462-63). Dr. Campos
noted she placed the plaintiff on the facility's High
Risk for Suicide list because the plaintiff was depressed,
experiencing multiple stressors, and had a strong history of
four suicide attempts. (Tr. 463). A rating decision by the
Department of Veterans Affairs (“VA”) dated
September 5, 2014, found the plaintiff to have 100% service
connected disability due to his chronic adjustment disorder
with mixed anxiety and depressed mood, effective December 23,
2011. (Tr. 931, 933).
Dr. Javier I. Cartaya, M.D.
October 9, 2014, the plaintiff was evaluated by Dr. Javier I.
Cartaya, M.D., at the Homestead VAMC. (Tr. 314). Dr.
Cartaya's assessment of the plaintiff described him as
having numerous mood and anxiety symptoms, limited coping
skills, and numerous negative distortions in his thinking.
(Tr. 320). Dr. Cartaya also noted that the plaintiff had been
off his medications for six months. Dr. Cartaya also noted
that the plaintiff made the decision to see him on his own
accord. (Id.). Dr. Cartaya diagnosed the plaintiff
with bipolar disorder I, unspecified anxiety disorder,
tobacco use disorder, and chronic pain. (Id.). Dr.
Cartaya also recommended a mood stabilizer but the plaintiff
Dr. Ernesto M. Grenier, M.D.
October 27, 2014, the plaintiff was evaluated by Dr. Ernesto
M. Grenier, M.D. at the Miami VAMC. (Tr. 366). According to
Dr. Grenier's progress note, the reason for the
plaintiff's visit was to review his record for continuity
of care and compliance with his follow up visit because the
plaintiff had been identified as a high risk patient.
(Id.). Dr. Grenier diagnosed the plaintiff with: (1)
bipolar I disorder, (2) unspecified anxiety disorder (and
ruled out generalized anxiety disorder), (3) history of PTSD,
and (4) unspecified personality disorder. (Tr. 367). Dr.
Grenier's impression of the plaintiff as a risk for
suicide ideations, intent, or plans was low. (Id.).
Moreover, Dr. Grenier described the plaintiff as having the
capacity to make decisions regarding his treatment. (Tr.
370). In support, Dr. Grenier performed a PHQ-2 Depression
Screening that resulted in a score of zero, which is a
negative screen for depression. (Id.).
Dr. Zhihong Guo, M.D.
November 14, 2014, the plaintiff was evaluated by Dr. Zhihong
Guo, M.D. at the Miami VAMC. (Tr. 291). The plaintiff
reported feeling down, angry with himself, having racing
thoughts, and prolonged latency to falling into sleep.
(Id.). Dr. Guo reported that the plaintiff
was having some paranoid and persecutory delusions. (Tr.
292). A mental status exam indicated that the plaintiff had
fair attention and concentration, good hygiene and grooming,
was alert, had fair insight and judgment, and had a depressed
and anxious mood. (Tr. 296-97). Dr. Guo also reported the
plaintiff as having job skills, or capable of being taught
because he is cognitively, emotionally and physically willing
to work. (Tr. 297). The plaintiff was reported to be alert
and oriented to spheres and free of any altered thought
January 13, 2015, the plaintiff returned to Dr. Guo. (Tr.
347). The plaintiff reported episodes of frequent mood swing
cycles occurring two to three times monthly, changes of
sleeping cycles, and less tolerance to small life related
stress. (Tr. 348). Accordingly, Dr. Guo's assessment
revealed that the plaintiff's response to treatments for
bipolar I disorder, nightmares, and PTSD were not improving
as expected. (Tr. 346). The plaintiff agreed to start
Zyprexa. (Tr. 348). On February 13, 2015, the
plaintiff returned to Dr. Guo for a follow up assessment.
(Tr. 340). The plaintiff described difficultly falling into
sleep, mood swings, feeling anxious, and episodes of mildly
elevated mood. (Tr. 341). The plaintiff also complained of
back and joint pain. (Tr. 342). The plaintiff's mental
status exam indicated, however, that he was calm and
cooperative with interview, maintained good eye contact, had
fair attention and concentration, and that his level of
alertness was intact. (Tr. 343). The plaintiff was prescribed
Prazosin and his dose of Zyprexa was increased.
visit on April 28, 2015, the plaintiff reported compliance
with his medication routine absent any side effects. (Tr.
331).The plaintiff also indicated feelings of anxiety and
frustration, low levels of concentration and being easily
distracted. (Id.). The plaintiff further reported
depressive episodes including: depressed mood, lack of
motivation and loss of interest in maintaining hygiene and
grooming. (Id.). Dr. Guo diagnosed the plaintiff
with bipolar I disorder, with rapid cycling, PTSD,
unspecified anxiety disorder, cannabis use disorder, a
cluster A trait, nicotine dependence, GERD, and ruled
out schizotypal personality. (Id.). Dr. Guo
indicated the plaintiff's bipolar I disorder, mania
episodes, and response to PTSD treatment were improving. (Tr.
337). Dr. Guo increased the plaintiff's dosage of Zyprexa
and his dosage of Prazosin. (Id.).
5, 2015, after completing a Mental Impairment Questionnaire
(“MIQ”), Dr. Guo diagnosed the plaintiff with
bipolar I disorder, PTSD, unspecified anxiety disorder,
cannabis use disorder, and nicotine dependence. (Tr. 490,
486). The clinical signs included: manic syndrome, grandiose
thoughts, difficultly thinking or concentrating, easy
distractibility, intrusive recollections of a traumatic
experience, hyperactivity, psychomotor agitation, pressured
speech, loosening of associations, and decreased sleep. (Tr.
487). Dr. Guo also found that the plaintiff may not be able
to handle stress in the workplace, concluding he would likely
decompensate if placed in a stressful situation. (Tr. 488).
identified the plaintiff as having “moderate-to-marked
limitations” where his symptoms constantly interfere
with his ability to perform mental activities in a
competitive environment on a sustained and ongoing basis for
one-third to two-thirds of an eight-hour workday. (Tr. 489).
According to Dr. Guo, these symptoms affected the
plaintiff's ability to: understand, remember, and carry
out detailed instructions; maintain attention and
concentration for extended periods; perform at a consistent
pace without rest periods of unreasonable length or
frequency; get along with coworkers or peers without
distracting them; and be aware of hazards and take
appropriate precautions. (Id.). Dr. Guo estimated
that the plaintiff would likely be absent from work more than
three times per month due to his impairments or treatment.
(Tr. 490). On the Mental Impairment Questionnaire, Dr. Guo
identified that the plaintiff's first treatment was on
September 11, 2009. (Tr. 486). In addition, Dr. Guo opined
that the plaintiff's symptoms and related limitations
applied far back, but he did not specify how far back they
Stephanie Friedman, M.D.
28, 2015, the plaintiff was evaluated by Dr. Stephanie
Friedman, M.D. at the Miami VAMC. (Tr. 736). The plaintiff
reported he was no longer taking Prazosin because it made him
feel “weak” but continued to take Zyprexa
nightly. (Id.). The plaintiff also reported
continued fluctuations in energy levels, with two to three
days of no sleep, two to three times a month. (Tr. 736- 37).
Dr. Friedman diagnosed the plaintiff with bipolar disorder I,
PTSD, and cannabis and nicotine use disorder. (Tr. 742-43).
Dr. Friedman prescribed the plaintiff Lamictal and Zyprexa.
follow up visit on August 21, 2015, the plaintiff indicated
compliance with his medication routine. (Tr. 720). The
plaintiff reported feeling “more stable” than he
had in the past few years, but that he continued to
experience cycling of energy levels with two to three days of
increased energy and a decreased need for sleep. (Tr.720-21).
Dr. Friedman concluded that the periods of increased energy
are associated with poor concentration. (Id.). Dr.
Friedman described the plaintiff's response to treatment
for bipolar I disorder as inadequately controlled. (Tr. 727).
The plaintiff agreed to begin individual psychotherapy, but
refused a PTSD consultation. (Id.).
October 13, 2015, the plaintiff returned to Dr. Friedman.
(Tr. 703-04). The plaintiff reported compliance with his
medication absent side effects. (Tr. 704). The plaintiff
stated that he had not smoked marijuana in two months.
(Id.). The plaintiff also reported improvements in
his overall mood, decreased impulsivity, and decreased
goal-directed activities. (Id.). Despite his
continued mood fluctuations, the plaintiff noted his
“highs” and “lows” lasted for shorter
periods of time and that he either slept well or not at all,
whereas before he would consistently have interrupted sleep.
(Id.). Dr. Friedman noted that the plaintiff's
response to treatment for bipolar disorder I continued to be
inadequately controlled. (Tr. 710). Dr. Friedman increased
the plaintiff's dose of Lamictal and prescribed
addendum dated December 11, 2015, Dr. Friedman stated that
the plaintiff was totally disabled without consideration of
any past or present drug and/or alcohol use. (Tr. 913). Dr.
Friedman stated drug and/or alcohol use was not material
because the plaintiff was not currently using drugs and/or
alcohol and was still disabled. (Id.).
Dr. Earl Taitt, M.D.
April 29, 2014, at the request of the plaintiff's
counsel, Dr. Earl Taitt, M.D. of Valencia Psychiatry in
Orlando, Florida, evaluated the plaintiff via telephone
because the plaintiff did not have access to transportation.
(Tr. 927). Dr. Taitt also reviewed the plaintiff's
veteran claim file, which consisted of 745 pages of records
including the plaintiff's service medical record,
outpatient medical records from the VAMC, and records in
support of his various claims for symptoms in 2005 while on
active duty in the Marine Corps. (Id.). According to
Dr. Taitt's progress note, a mental status examination
revealed that the plaintiff's mood was anxious,
dysphoric, and irritable. (Tr. 929). Dr. Taitt also stated
that the plaintiff's thought process was confused,
slowed, and inefficient and described the plaintiff as
forgetful of facts and events with limited insight.
(Id.). Dr. Taitt found, however, that the
plaintiff's judgment was intact at the time of the
Taitt diagnosed the plaintiff with PTSD, an adjustment
disorder with mixed anxiety and depressed mood, chronic lower
back pain, chronic esophageal reflux disease, bilateral
conductive hearing loss, and physchosocial stressors.
(Id.). The plaintiff's GAF assessment resulted
in a score of 50. (Id.). Dr. Taitt concluded that
the plaintiff suffered from service connected mental health
impairment beginning in the year 2005 through the present
date. (Tr. 929). In Dr. Taitt's opinion, the plaintiff
met all of the DSM IV criteria for a diagnosis of both PTSD
and an adjustment disorder with anxiety and depressed mood.
(Id.). Dr. Taitt also found that the plaintiff's
psychological symptoms were severe enough for him to be
unsuitable for full or part-time employment in any
Department of Disability Services Psychological
15, 2015, Lee Reback Psy. D., P.A. (hereinafter
“Reback”), a Department of Disability Services
(DDS) medical advisor, and Melissa Rubin (hereinafter
“Rubin”), a Disability Examiner, determined that
the plaintiff was not disabled. (Tr. 82-83). To make this
determination, Reback and Rubin evaluated the plaintiff's
medical records from the Augusta VAMC and the Miami VAMC.
(Tr. 77-78). Reback found there was insufficient evidence to
determine the plaintiff's restriction of activities, his
difficulties in maintaining social functioning, his
difficulties in concentration, persistence or pace, and any
repeated episodes of decompensation. (Tr. 80). Reback further
concluded there was insufficient evidence to establish that
the plaintiff had an organic mental, schizophrenic, affective
disorder, or an anxiety-related disorder. (Id.).
Reback also found that the plaintiff had medically
determinable impairments (MDI) from dysfunction to major
joints, spine disorders, anxiety disorders, and affective
disorders. (Tr. 79).
respect to Residual Functional Capacity
(“RFC”), Reback concluded that the plaintiff was
found to have exertional limitations, which included: (1)
that the plaintiff could occasionally lift or carry
50 pounds; (2) that the plaintiff could
frequently lift or carry 25 pounds; (3) that the
plaintiff could stand or walk for a total of about six hours
in an eight-hour workday; and (4) that the plaintiff could
sit for a total of about six hours in an eight-hour day. (Tr.
81). The plaintiff also had an unlimited exertional
limitation to push or pull when lifting or carrying. (Tr.
81). Moreover, the plaintiff had manipulative limitations
when reaching in any direction left or right, in front,
and/or laterally. (Id.). Rubin concluded that the
plaintiff “should have been able to engage in SGA as
outlined in [the] RFC at the time of his
DLI”. (Tr. 82).
Vocational Expert Testimony
January 26, 2016, the vocational expert (“VE”),
testified at the plaintiff's hearing before the ALJ. (Tr.
41). At the hearing the VE testified the plaintiff's jobs
as a flight technician, roofer helper, and assistant manager
were performed in the national economy. (Tr. 69). The VE
further testified that the plaintiff developed transferable
skills from his position as an assistant manger,
specifically, customer service skills. (Id.).
However, the VE found that the ...